Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT
GR.BOMBAY
NOTICE OF MOTION NO.4307 OF 2019
(CNR NO.MHCCO1-01182-2019)
IN
S.C. SUIT NO.425 OF 2015
Indira Nagar CHS Ltd ..Plaintif
V/s
Mr.Pandurang Dhaku Hariyan ..Defendant
Ld. advocate Mr.Mishra for plaintif
Ld. advocate Mr.Tripathi for defendant
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 29/01/2020
ORAL ORDER
1. This notice of motion is tendered by the
defendant to condone the delay of 1340 days
in fling the written statement and for taking
the written statement on record.
2. Heard.
3. Ld. Counsel for the defendant submitted that
writ of summons was served upon the
defendant in March 2015. Due to oversight,
defendant could not inform his advocate
about service of writ of summons upon him
and his advocate was under
2
-- 1 of 4 --
2
misrepresentation that matter is being
proceeded on private service and writ of
summons is still to be served upon the
defendant. The defendant took out the notice
of motion bearing no.1978/2017 u/s. 9A of the
Civil Procedure Code for framing preliminary
issue. The pleadings were completed. The
notice of motion was disposed of in view of
Ordinance of State of Maharashtra. The
defendant was continuously appearing in the
matter. There is no negligence on the part of
the defendant.
4. Ld. Counsel for the plaintif submitted that
delay is intentional which is more than seven
years. No doubt the defendant has taken
notice of motion for framing additional issue
u/s. 9A of the Code of Civil Procedure, but it
does not stop defendant from fling the
written statement. The written statement is
to be fled within 30 days.
5. I have considered the rival contentions of the
parties. It appears from the record that
defendant was regularly attending the matter
and even has fled the notice of motion
no.1978/2017.
6. Be that it may, there should not hyper
technical and pedantic approach in dealing
3
-- 2 of 4 --
3
with such type of application. The substantial
right of the parties are involved. On
17/10/2018, the matter was kept for passing
no written statement order. The matter did
not crop up for evidence. No prejudice would
be caused to the plaintif if the defendant is
permitted to put his defence and prosecute
the suit. In view of the same, notice of motion
needs consideration. Hence, it is expedient to
pass the following order:-
ORDER
1. N/M No.4307/2019 is made absolute in terms of
prayer clause (a) and (b) subject to cost of Rs.5,000/- to
be paid by the defendant to the plaintiff within a period
of four weeks from today.
2. Payment of cost is subject precedent.
3. On compliance of the order, written statement be
taken on record.
4. N/M No.4307/2019 is disposed off accordingly.
29/01/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on: 29/01/2020
Transcribed on: 04/02/2020
Signed on: 11/02/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
11/02/2020 at 5.20 pm.
MRS.T.C.KAMBLE
4
-- 3 of 4 --
4
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
29.01.2020
Judgment and order signed by P.O. 11.02.2020
Judgment/order uploaded on 11.02.2020
-- 4 of 4 --